Citation Nr: 0836725
Decision Date: 10/24/08 Archive Date: 10/31/08
DOCKET NO. 05-24 490A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Whether the appellant is entitled to Dependents' Educational
Assistance benefits under Chapter 35 of Title 28 of the
United States Code.
WITNESSES AT HEARING ON APPEAL
Appellant and E.S.
ATTORNEY FOR THE BOARD
Debbie A. Riffe, Counsel
INTRODUCTION
The veteran served on active duty from April 1970 to January
1972. The appellant is the veteran's son.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of an adverse determination in July 2004 of a
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma.
In December 2007, the Board remanded the case to afford the
appellant a hearing, which was held in April 2008 before the
undersigned Veterans Law Judge. A transcript of the hearing
has been associated with the claims file.
In June 2008, the Board remanded the case to the RO for
additional development.
Once again, the appeal is REMANDED to the RO via the Appeals
Management Center in Washington, DC. The claim of
entitlement to Dependents' Educational Assistance benefits
under Chapter 35 of Title 38 of the United States Code is
deferred until the claim of clear and unmistakable error in
the effective date for the veteran's total disability rating
is finally adjudicated.
REMAND
As explained in the Board remand of June 2008, the outcome of
the appellant's claim for Dependents' Educational Assistance
benefits rests on the RO's adjudication of the inextricably
intertwined claim of the veteran concerning whether there was
clear and unmistakable error in a May 2004 rating decision,
which assigned the effective date of August 22, 2003, for the
veteran's award of a total disability rating for
compensation.
As previously noted, in a rating decision in May 2004, the RO
granted the veteran a total disability rating for
compensation rating based on individual unemployability due
to service-connected post-traumatic stress disorder, 70
percent disabling, which also established eligibility for
Dependents' Educational Assistance benefits, both effective
from August 22, 2003, which is the date of receipt of the
veteran's original claim for VA disability compensation.
While the veteran's formal application for VA disability
compensation was date-stamped by the VA office in San
Antonio, Texas, on August 22, 2003, it has been argued that
the effective date of the award for the total disability
rating and of the appellant's eligibility for educational
assistance benefits should have been August 18, 2003. An
earlier effective date of August 18, 2003, would be before
the appellant reached his 26th birthday on August 19, 2003,
making him eligible for educational assistance benefits.
The record shows that the veteran's claim for VA disability
compensation, VA Form 21-526, was dated on August 18, 2003,
which is the same day he was seen at the Vet Center, and that
a Vet Center report on that date shows that he was referred
to the office of the Disabled American Veterans to initiate
the VA claim. However, the veteran's application was then
transmitted to the San Antonio office where it was not date-
stamped as having been received by VA until August 22, 2003.
The evidence of the Vet Center report, dated August 18, 2003,
and the veteran's VA Form 21-526, which was dated on the same
day, raises the question of whether an informal claim under
38 C.F.R. § 3.155 had been received by VA.
In its remand of June 2008, the Board requested the RO to
adjudicate the veteran's claim of clear and unmistakable
error, considering whether the entry by the Vet Center of
August 18, 2003, constituted an informal claim under
38 C.F.R. § 3.155.
In the supplemental statement of the case, dated in June
2008, the RO found that there was no clear and unmistakable
error in the assignment of the effective date, considering
38 C.F.R. § 3.157, but not 38 C.F.R. § 3.155.
A remand is necessary to ensure compliance with the Board's
directives. Stegall v. West, 11 Vet. App. 268, 271 (1998)
(Where the remand orders of the Board are not complied with,
the Board errs as a matter of law when it fails to ensure
compliance.).
Accordingly, the case is REMANDED for the following action:
1. Adjudicate the veteran's separate
claim of clear and unmistakable error
in the rating decision of May 2004 by
the RO, which assigned an effective
date of August 22, 2003, for the award
of a total disability rating for
compensation based on individual
unemployability due to service-
connected post-traumatic stress
disorder and for establishing basic
eligibility for Dependents' Educational
Assistance benefits.
In the adjudication, consider whether
the Vet Center entry on August 18,
2003, in concert with the formal
application for VA disability
compensation dated on August 18, 2003,
constituted an informal claim of
service connection for post-traumatic
stress under 38 C.F.R. § 3.155. Also
consider the applicability of 38 C.F.R.
§ 20.305, in terms of whether the date
of receipt of the formal application
may be deemed five days prior to August
22, 2003, in light of the lack of a
postmark date on the formal
application.
If the decision on the claim of clear
and unmistakable error is unfavorable,
notify the veteran of the adverse
determination and of his appellate
rights.
2. If the veteran's claim of clear and
unmistakable error is denied, furnish
the appellant, the veteran's son, a
supplemental statement of the case on
the claim for Dependents' Educational
Assistance benefits claim and return
the case along with the veteran's
claims file and the appellant's
educational folders to the Board.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2008).
_________________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the United States Court of Appeals for
Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of the appellant's appeal. 38 C.F.R.
§ 20.1100(b) (2007).